Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Faulks Excerpts

Report stage
Monday 26th June 2023 Lords Chamber

Moved by

[Lord Faulks]

99: After Clause 38, insert the following new Clause—
“Authorisation of interim custody orders under the Detention of Terrorists (Northern Ireland) Order 1972
(1) Article 4 of the Detention of Terrorists (Northern Ireland) Order 1972 is to be treated as always having had effect as authorising an interim custody order under that article in relation to a Troubles-related offence to be made by and with the authority of any Minister of the Crown whose signature was required for the making of such an order (and not just by and with the authority of the Secretary of State personally).(2) Subsection (1) does not revive any criminal conviction quashed before the coming into force of this section.(3) But a person whose conviction for any Troubles-related offence (whether or not quashed) or whose detention (whether or not as a consequence of such a conviction) depended, directly or indirectly, on the validity of such an interim custody order is not entitled, by or under any enactment or otherwise, to receive any damages or compensation in respect of that conviction or detention if the only reason for impugning its validity relates to whether the order was made by and with the authority of the Secretary of State, personally.(4) Subsection (3) applies irrespective of whether the claim for damages or compensation was made before or after the coming into force of this section.”

[Lord Faulks (Non-Afl)]

My Lords, this amendment, which is supported by the noble Lord, Lord Godson, and the noble Baroness, Lady Hoey, was debated in Committee. It concerns a judgment of the Supreme Court in a claim by Gerry Adams arising out of his internment in the 1970s and his escape from prison. The issue before the Supreme Court was whether his internment, or interim custody order as it was more formally known, was lawful in light of the fact that the Government could not prove that the ICO had been personally signed and approved by the then Secretary of State for Northern Ireland. The lower courts decided that it was, but the Supreme Court, in a single judgment from Lord Kerr, reached a conclusion, which surprised many commentators, that it was unlawful—thus leaving the door open for substantial claims by not only Gerry Adams but a number of others who could rely on the decision.

The most prominent critics of the decision were from Policy Exchange, which has consistently and cogently argued that the decision flew in the face of the well-established Carltona doctrine. This is embedded in government practice and can be found in the cautious guidance given to civil servants about “the judge over your shoulder”. It means, for fairly obvious reasons, that such a decision can be taken by more junior Ministers or civil servants and does not require the personal attention of the Secretary of State to render the decision lawful. This practice was spoken to in Committee by the noble Lords, Lord Butler, Lord Murphy, Lord Howell, Lord Macdonald of River Glaven and Lord Browne of Ladyton, among others.

Your Lordships’ House is always slow to legislate contrary to a decision of the Supreme Court. Parliament affords our highest court great respect, and rightly so. When I had the privilege of chairing the Independent Review of Administrative Law, the committee received a number of submissions, including from Supreme Court judges, suggesting caution in our approach to the reform of judicial review, but it was always emphasised by them that Parliament had the right to legislate to reverse decisions of the court. My committee concluded that Parliament could and should do so, but only after very careful consideration of the arguments.

In advancing this amendment, I am considerably reassured by the criticism of the Supreme Court decision by the former Supreme Court judges Lord Sumption and Lord Brown of Eaton-under-Heywood, who last week had an article published on the subject by the Daily Telegraph. I will refer to the beginning of the article, although all of it bears close attention. He said:

“In the last few years, almost without exception, every judgment of the Supreme Court, certainly every unanimous one, has seemed to me to be plainly right, and certainly not plainly wrong. But the Court’s unanimous 2020 decision in Adams is an exception. Importantly this has introduced needless legal doubt about one of the most important principles on which the everyday work of government depends. Parliament has an opportunity—with a proposed amendment to the Northern Ireland Troubles Bill, now before the Lords—to put this right. It should do so”.


While on the subject of Lord Brown, noble Lords will probably have noticed that last week he formally retired from the House. I take this opportunity to pay tribute to his immense contribution to the work of this House. His voice has enriched so many debates. Many noble Lords will remember his sustained championing of the cause of IPP prisoners. His instincts were liberal, but he always understood the difficult choices that any Government have to make. It was not always easy to predict which side he would take in a debate, which made his views so well worth listening to. He also made an enormous number of friends right across the House, and we will miss him a great deal.

The Government understandably wanted time to consider their response to the amendment after it was debated in Committee. Their initial response, while not unsympathetic, was that there were legal impediments in the way of the amendment. I was not convinced by those arguments, despite having the opportunity generously afforded to me by the Minister to meet his officials. Policy Exchange, once more, stepped into the fray and published an article that provided a convincing counter to those arguments.

However, I am glad to say that the Government’s position has changed. For this I am very grateful both to the Minister and to the Secretary of State, Chris Heaton-Harris. I am also grateful to all noble Lords who have lent their support to the amendment. I understand that the Government need a little more time but are proposing to bring forward an amendment at Third Reading that will reflect the concerns contained in this amendment. I have indicated to them that, if the amendment proposed by the Government does not meet the objectives contained in this amendment, we reserve the right to—and we will—vote at Third Reading. In the meantime, I thank them for their constructive approach. The Bill is about legacy. This amendment provides an opportunity to put an injustice right. It will provide legal certainty. What better legacy could there be? I beg to move.

[Lord Butler of Brockwell (CB)]

My Lords, I support the amendment moved by the noble Lord, Lord Faulks. I also echo his remarks about Lord Brown of Eaton-under-Heywood, for many years my noble friend in this House and on the golf course. His wisdom and contribution have been tremendous. The very powerful article he wrote in the Daily Telegraph last week could have been the speech he would have made today.

I want to add two things. One is about public administration and the other is about the implications of not accepting this amendment.

--- Later in debate ---

[Lord Caine (Con)]

My Lords, I am very grateful, as always, to noble Lords who have spoken in this short but very important debate led by the noble Lord, Lord Faulks, to whom I am very grateful for the constructive engagement and discussions we have had over the past few days. This has been an excellent debate. I join in the tributes to Lord Brown of Eaton-under-Heywood, whose contribution to this House over many years has been immense.

The Government are extremely sympathetic to the aims of this amendment. It aligns with our desired policy aim to reduce pressure on the civil courts in Northern Ireland, which currently have a considerable case load. In our view, it would not be appropriate for the Government to give an opinion on the judgment of the Supreme Court in R v Adams, but we are of the view that this judgment, which was unexpected, has led to a degree of confusion in our law that merits clarification in some way. If I may go slightly further than my brief, when the judgment appeared some of us were—to put it mildly—somewhat baffled by its content.

On the numbers of cases in scope, we are aware of around 300 to 400 civil claims being brought on a similar basis to the Adams case, including those at pre-action stage, with 40 writs filed before First Reading of this Bill. It is therefore likely that a number of Adams-type cases will be allowed to continue in spite of the prohibition on civil claims in Clause 39 of the Bill. We are aware that this amendment has a wider application than just civil damages claims, which are otherwise within the scope of Clause 39, but the numbers of other types of cases in scope are limited.

The Government also understand that the amendment covers applications for compensation for miscarriages of justice under the statutory scheme established by Section 133 of the Criminal Justice Act 1988, following the reversal, as a result of the Adams judgment, of convictions for escaping or attempting to escape from internment facilities. The Government anticipate that it is unlikely that many more cases could in theory be brought along these lines; based on the numbers of escapees, this is unlikely to be more than around 30 and could be substantially less.

Claims brought as a result of the Supreme Court judgment in Adams are claims for compensation that are not based on any allegation against the state of mistreatment or misfeasance in public office, as other claims in this area are, but on a technical point regarding the signing of interim custody orders, as the noble Lord, Lord Butler of Brockwell, made absolutely clear. At the time of their detention and conviction for escape-related offences, and for decades afterwards, these individuals could not have expected the Supreme Court to find as it did.

The Government have always acted on the understanding that those interim custody orders made by Ministers of the Crown, under powers conferred on the Secretary of State, were perfectly valid on the basis of the well-established and understood Carltona principle. This is a clarification that needs to be made, in our view, to restore legal certainty around this crucially important element of the way in which government works in this country.

I listened with great interest to my noble friend Lord Howell of Guildford, who is the surviving member of the Northern Ireland Office from 1972 as Minister of State. He gave a very vivid and accurate description of just how difficult life was at the time, and how dangerous and fast-moving the situation was.

I agree with the noble Lord, Lord Murphy of Torfaen, in his description of how the warrant system works in Northern Ireland. As many Members know, I have worked for a number of Secretaries of State, and the signing of warrants is something all of them have taken a huge amount of care over to ensure that they are done properly and within the law.

In response to the noble Baroness, we are not far away from Third Reading, as she will be aware, but I will endeavour to consult with interested parties between now and then.

On this basis, as the noble Lord, Lord Faulks, indicated, I will commit to bringing forward an amendment at Third Reading next week, following consideration by officials and lawyers, that addresses these matters. In return, I ask that the noble Lord and my noble friend Lord Godson withdraw their amendment, subject to the caveat that the noble Lord, Lord Faulks, made in his remarks.

[Lord Faulks (Non-Afl)]

My Lords, I am very grateful to all those who have taken part in this debate, and I am grateful to the Minister for his remarks. I am sure the House is grateful for all those who associated themselves with the comments I made about the noble and learned Lord, Lord Brown of Eaton-under-Heywood.

The Minister said with his usual understatement that many were somewhat baffled by the decision of the Supreme Court. The bafflement was widespread, I can assure the House, and the notion that we should wait until another case comes along was never a convincing argument in favour of Parliament not acting to put right this injustice. As the Minister rightly said, Clause 39 of the Bill will not deal with this essential unsatisfactory aspect of the judgment, and there could be many cases arising out of the error made by the Supreme Court.

Of course courts make mistakes from time to time; the whole basis of an appeal from one judgment to another is predicated on the fact that they do. The Supreme Court rarely makes mistakes, but Parliament puts them right when it does. Parliament also makes mistakes, and would then reverse those mistakes. There is nothing in this amendment which shows a lack of respect for the Supreme Court or its decisions in any way.

I look forward very much to meeting the Minister and his officials, to help, I hope, provide an amendment which reflects what is in our amendment—government amendments are always better than amendments put forward by Back-Benchers. Provided it does what this amendment was intended to do, that would be satisfactory.

I need not weary the House any longer at this stage. I have repeated that we will bring back the matter at Third Reading if, sadly, we are unable to find a satisfactory way through. In the meantime, I thank all noble Lords and beg leave to withdraw the amendment.

Amendment 99 withdrawn.